The Road to Peace Starts in Jerusalem: the "Condominium" Solution

Catholic University Law Review Volume 45 Issue 3 Spring 1996 Article 11 1996 The Road to Peace Starts in Jerusalem: The "Condominium" Solution John V. Whitbeck Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation John V. Whitbeck, The Road to Peace Starts in Jerusalem: The "Condominium" Solution, 45 Cath. U. L. Rev. 781 (1996). Available at: https://scholarship.law.edu/lawreview/vol45/iss3/11 This Symposium is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. THE ROAD TO PEACE STARTS IN JERUSALEM: THE "CONDOMINIUM" SOLUTION John V. Whitbeck* There will never be a durable peace in the Middle East without a settlement of the Israeli-Palestinian conflict acceptable both to most Israelis and to most Palestinians. That is a fact. There also will never be a lasting settlement of the Israeli-Palestinian conflict without a solution to the status of Jerusalem acceptable both to most Israelis and to most Palestini- ans. That also is a fact, one which is increasingly difficult (and dangerous) for anyone to ignore. It is still widely assumed that no such solution exists. This has led Israel to insist that the status of Jerusalem should not even be discussed until all the lesser problems of Israeli-Palestinian relations have been resolved, at which point, perhaps, some previously unimaginable solution may mirac- ulously appear. While, according to the Declaration of Principles,1 permanent status negotiations are to commence not later than May 4, 1996,2 and Jerusalem is explicitly one of the "remaining issues" to be covered during those negotiations, the Declaration of Principles is ambiguous as to whether "all" of the "remaining issues" are to be discussed at once.3 * John V. Whitbeck is an international lawyer based in Paris, and a graduate of Harvard Law School. His "Two States, One Holy Land" framework for peace was the subject of a three-day conference of 24 Israelis and Palestinians held in Cairo in November 1993. His solution for Jerusalem was one of the plans presented at a two-day conference on the Theme, "Jerusalem - Best Second Choices" held in Jerusalem in June 1994. Ear- lier versions of this paper were published in 1994 by AI-Quds (Jerusalem), Middle East International (London), The Washington Report on Middle East Affairs, Middle East In- sight (Washington), Middle East Policy (Washington), and in 1995 by Palestine-IsraelJour- nal (Jerusalem). 1. Declaration of Principles on Interim Self-Government Arrangements, Sept. 13, 1993, Isr.-PLO, reprinted in 32 I.L.M. 1525 (entered into force Oct. 13, 1993) [hereinafter Declaration of Principles]. The Declaration of Principles was signed by "[tihe Government of the State of Israel and the P.L.O. team (in the Jordanian-Palestinian delegation to the Middle East Peace Conference)" on September 13, 1993 in Washington, D.C. Id. at 1527. 2. See id. at 1529, art. V, § 2. The Interim Agreement stipulates that "negotiations on the permanent status ... will start ... not later than May 4, 1996." Preamble, Israeli- Palestinian Interim Agreement on the West Bank and the Gaza Strip (signed by the Gov- ernment of the State of Israel and the PLO on Sept. 28, 1995 in Washington, D.C.). 3. Declaration of Principles, supra note 1, at 1529, art. V, § 3. Section 3 states that "these negotiations shall cover remaining issues, including: Jerusalem, refugees, settle- Catholic University Law Review [Vol. 45:781 Absent a major change of heart, Israel is likely to refuse to discuss Jerusa- lem (at least in any serious way) until the very end of the projected five- year "interim period" in 1999. The signing of the Declaration of Principles has not slowed Israel's efforts to change the "facts on the ground" in and around Jerusalem in its favor. Particularly in light of the Israeli government's efforts to hobble existing Palestinian institutions in the city, its declared intention to build new housing units for some 32,500 Israelis at Har Homa, between the Jerusalem Arab neighborhood of Umm-Taba and the neighboring West Bank Arab city of Beit Sahour, and the constant talk of expanding the municipal boundaries to incorporate Ma'aleh Adumim, a huge West Bank settlement several kilometers east of Jerusalem, and other nearby settlements, Palestinians understandably fear that Israel's true intention is to create a fait accompli by 1999, permitting Israel to stonewall on Jeru- salem in the expectation (or hope) that the Palestinians would by then have no choice but to bear the unbearable. In these circumstances, doubts, distrust, and even despair remain wide- spread. Many people on both sides have no faith in the current "peace process" and no desire to become involved in it and to help it to succeed because they perceive at the end of the road a great immovable boulder named Jerusalem which they believe condemns any "peace process" to ultimate and inevitable failure. Nothing is more likely to instill construc-_ tive confidence in the eventual success of the "peace process" and to ac- celerate the essential moral, spiritual and psychological transformation toward a cooperative, rather than a confrontational, view of the future of the Middle East than a prompt recognition that a solution to the status of Jerusalem does exist. Fortunately, there is one solution which has a real chance of being acceptable both to most Israelis and to most Palestinians. THE JOINT SOVEREIGNTY SOLUTION When Israelis and Palestinians speak about Jerusalem, they are not simply establishing negotiating positions. Jerusalem commands too tight a grip on hearts and minds. Their repeated and virtually unanimous positions must be taken seriously. If one accepts, as one must, that no Israeli government could ever accept a redivision of Jerusalem, and if one accepts, as one must, that no Palestinian leadership could ever accept a permanent status solution which gave the Palestinian State (and, through it, the Arab and Islamic worlds) no share of sovereignty in Jerusalem, then only one solution is conceivable - joint sovereignty over an undivided ments, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest." Id. 1996] "Condominium" Solution city. In the context of a two-state solution, Jerusalem could form an undivided part of both states, constitute the capital of both states and be ad- ministered by an umbrella municipal council and local district councils. In the proper terminology of international law, the city would be a "condominium" of Israel and Palestine. Joint undivided sovereignty, while rare, is not without precedent. Chandigarh is the joint undivided capital of two Indian states. For more than seventy years, the entire Pacific nation of Vanuatu (formerly the New Hebrides Condominium) was under the joint undivided sovereignty of Britain and France. For more than 700 years, the Principality of An- dorra has been under the joint undivided sovereignty of French and Span- ish individuals (currently the President of France and the Bishop of Seo de Urgel) while its administration is entrusted to an elected General Council. As a joint capital, Jerusalem could have Israeli government offices principally in its western sector, Palestinian government offices principally in its eastern sector and municipal offices in both. A system of dis- tricts or French-style arrondissements could bring municipal administration closer to the different communities in the City (including the ultra-orthodox Jewish community). To the extent that either state might wish to control persons or goods entering it from the other state, this regulation could occur at the points of exit from, rather than entry to, Jerusalem. In a context of peace, particularly one coupled with economic union, the need for such controls would be minimal. In a sense, Jerusalem can be viewed as a cake that could be sliced either vertically or horizontally. Either way, the Palestinians would get their share of the cake, but, while most Israelis could never voluntarily swallow a vertical slice, they might just be able to swallow a horizontal slice. Indeed, by doing so, Israel would finally achieve international recognition of Jerusalem as its capital. Jerusalem is both a municipality on the ground and a symbol in hearts and minds. Undivided but shared in this way, Jerusalem could be a symbol of reconciliation and hope for Jews, Muslims, Christians, and the world as a whole. Furthermore, since a city needs no army but only po- lice, Jerusalem could also be fully demilitarized, finally becoming the "City of Peace" which all three religions have long proclaimed it to be. Among peace-oriented Israelis and Palestinians, there is a broad consensus that, in any permanent status solution, Jerusalem should remain physically undivided. However, there is no consensus on how to solve the problem of sovereignty. That issue remains almost too hot to handle. In- deed, it is a bit like death: Everyone knows that it is at the end of the Catholic University Law Review [Vol. 45:781 road, but virtually no one wants to talk about it because virtually no one can see any solution or happy ending. The issue of sovereignty over Jerusalem is so emotional, and the consensus within each community behind its own uncompromising position is (or is at least proclaimed and perceived to be) so nearly universal, that there is no incentive for those within the communities directly engaged to propose original or unorthodox ideas on the subject. Even today, any Israeli or Palestinian who publicly sought to promote a compromise solution to the issue of sovereignty over Jerusalem which he honestly believed could be acceptable to the other side would risk being castigated as a traitor or a heretic by the vocal majority of his compatriots or coreligionists.

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